Northwest Residents Ass'n v. DEPARTMENT OF H. & UD
Decision Date | 20 April 1971 |
Docket Number | No. 70-C-590.,70-C-590. |
Citation | 325 F. Supp. 65 |
Parties | NORTHWEST RESIDENTS ASSOCIATION, a Voluntary Organization, et al., Plaintiffs, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, a Department of the Executive Branch of the United States, et al., Defendants. |
Court | U.S. District Court — Eastern District of Wisconsin |
Catania & Neubecker, by Nicholas C. Catania, Milwaukee, Wis., for plaintiffs.
David J. Cannon, U. S. Atty., by Richard E. Reilly, Asst. U. S. Atty., Milwaukee, Wis., for defendants.
DECISION AND ORDER
The present case represents a challenge to certain action taken by the defendants under section 235 of the National Housing Act ( ). The defendants have moved to dismiss on the basis that this court lacks subject matter jurisdiction and also on the basis that the plaintiffs have failed to state a claim upon which relief can be granted. On November 19, 1970, this court entered an order denying the plaintiffs' request for a temporary restraining order.
The plaintiffs are six property owners and a non-profit organization which represents them and "several hundred" other home owners in the 18th ward in Milwaukee. They allege that the defendants currently are engaged in approving mortgage interest payment subsidies, under 12 U.S.C. § 1715z, "to finance the construction of 576 single family homes and 569 Condominium type units in the 18th Ward."
The complaint further alleges:
This court is asked to enjoin the defendants' allegedly illegal conduct in implementing the provisions of § 1715z.
The defendants' motions raise two issues: (1) whether this court has jurisdiction and, (2) whether the plaintiffs have "standing" to bring their action.
Paragraph one of the complaint alleges that this court has jurisdiction "by virtue of the fact that it involves a controversy arising out of the laws of the United States." The defendants contend that this statement "falls short of conferring jurisdiction" and argue that, because it appears that the plaintiffs' action is based upon a "federal question," the absence of any allegation of jurisdictional amount means that the plaintiffs have failed to comply with 28 U.S.C. § 1331.
It is clear, as the defendants assert, that no diversity of citizenship exists in the case at bar, and the complaint contains nothing which would appear to bring this action within the provisions of 28 U.S.C. § 1346. However, the plaintiffs urge that jurisdiction is conferred by the Administrative Procedure Act which provides for judicial review of agency action.
Whether the Administrative Procedure Act, standing alone, and without regard for jurisdictional amount, can confer jurisdiction has been the source of some conflict. Thus, in Kansas City Power & Light Co. v. McKay, 96 U.S. App.D.C. 273, 225 F.2d 924, 932 (1955), cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955), the court stated:
See also Ove Gustavsson Contracting Co. v. Floete, 278 F.2d 912 (2d Cir. 1960), cert. denied 364 U.S. 894, 81 S.Ct. 225, 5 L.Ed.2d 188 (1960); cf. Empresa Hondurena de Vapores, S. A. v. McLeod, 300 F.2d 222, 227 n. 5 (2d Cir. 1962), vacated on other grounds sub nom. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963).
On the other hand, numerous recent cases have either expressly or implicitly held that the Administrative Procedure Act is jurisdictional. In Citizens Committee for Hudson Valley v. Volpe, 302 F.Supp. 1083, 1091 (S.D.N.Y.1969), aff'd 425 F.2d 97 (2d Cir. 1970), the court stated:
."
See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L.Ed.2d 136 (decided March 2, 1971); Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966); Road Review League, Town of Bedford v. Boyd, 270 F.Supp. 650 (S.D.N.Y.1967); cf. Hanley v. Volpe, 305 F.Supp. 977 (E.D.Wis. 1969); Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (N.D.Cal.1968); L. Jaffe, Judicial Control of Administrative Action 164 (1965).
The statutory provision according the right of judicial review under the Administrative Procedure Act is 5 U.S.C. § 702:
"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."
In my opinion, the Act confers jurisdiction to hear the plaintiffs' claims. A holding that this court is completely without power to review any decisions of the Secretary of the Department of Housing and Urban Development, acting through the FHA, would be "unsound and unjust." Road Review League, supra, 270 F.Supp. at 660.
It has been noted that the preclusion of judicial review "is not lightly to be inferred and it requires a showing of clear evidence of legislative intent." Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1098 (D.C.Cir. 1970). See also Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 932 (2d Cir. 1968). The defendants have cited no statute which would bar this court's assumption of jurisdiction under the facts of this case; indeed, 12 U.S.C. § 1702 specifically authorizes suit against the Secretary, although § 1702 constitutes only a waiver of sovereign immunity. Choy v. Farragut Gardens 1, Inc., 131 F.Supp. 609, 613 (S.D.N.Y.1955); cf. Federal Housing Administration, Region No. 4 v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940); Powelton Civic Home Owners Association v. Department of Housing & Urban Development, 284 F.Supp. 809, 820 (E.D.Pa. 1968).
The second issue, whether the plaintiffs have standing to bring the present action, involves an examination of the requirements of 5 U.S.C. § 702. In Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F.Supp. 238, 244 (M.D.Pa.1970), the court stated:
It is clear that the first of the two elements necessary for standing is satisfied in the present case. The complaint avers that the defendants' actions have resulted, or will result, in injury, including economic injury, to the plaintiffs and to prospective purchasers of houses in the affected area. See also Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970); Scenic Hudson Preservation Conference v. Federal Power Comm'n, 354 F.2d 608 (2d Cir. 1965), cert. denied 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Izaak Walton League of America v. St. Clair, 313 F.Supp. 1312 (Minn.1970); Citizens Committee for Hudson Valley v. Volpe, 302 F.Supp. 1083 (S.D.N.Y.1969), aff'd 425 F.2d 97 (2d Cir. 1970); Western Addition...
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